Decisions – Miss.Ct.App. – August 26, 2014

Jordan v. State  –  After a controlled buy of drugs at a Pass Christian Home, deputies executed a search warrant and found sixty grams of powder cocaine hidden in a coffee maker, 2.9 grams of base in a Christmas decoration, $4000 in Christopher Jordan’s wallet and another $9000 in the master bedroom.  Jordan admitted to one of the investigators that he lived at the house even though his drivers license had a different address.  Jordan was convicted and sentenced to sixty years without parole. His only argument on appeal was the denial of a circumstantial evidence instruction.    He argues he was entitled to this instruction because the state was forced to prove his connection to the cocaine via constructive possession.  The Court affirms.   “Jordan has not cited any authorities holding that a circumstantial evidence instruction was wrongly refused when the defendant was in mere possession, even nonexclusive, of the premises where contraband was found. Nor did we encounter any in our survey of other reported Mississippi decisions.” 

Duke v. State – 25 year old  Patrick Duke was convicted of agg. assault after shooting his 63-year-old neighbor Howard Taper in the knee and then pistol-whipping him.  He got fifteen years with ten to serve.  At trial he argues that it was self defense.  On appeal he argues weight and sufficiency of the evidence.  The court affirms holding that the fact that there were some inconsistencies in the testimony does not require a jury verdict to be overturned.

Bar-Til, Inc. v. Superior Asphalt  –  In Jan. 2007,  Pull-A-Part of Jackson and Superior Asphalt entered into a contract to perform work on Pull-A-Part’s property.  Superior entered into a subcontract with Bar-Til to perform site work – clear 26 acres of land and strip 20,000 cubic yards of topsoil.  The work was expended and the price was $111,410.  After the project was started, Superior discovered that certain items in the plan failed to take into account new FEMA requirements for flood zone elevation.   Superior authorized Bar-Til to excavate an additional 33.000 cubic tons for $74,250.   A few months into the project, the new project manager ordered Bat-Til to cease work so that they could conduct a  topographical survey.   Bar Till resumed work a few months later.   When Bar-Til completed the project in December 2007, Superior failed to pay Bar-Til the full amount owed and Bar-Til sued.  The chancellor awarded Bar-Til $171,033.  Bar-Til appeals claiming the chancellor erred in not  considering punitive damages.  Bar-Til claims that the chancellor, after awarding compensatory damages, should have had a trial that would have allowed Bar-Til to put on evidence of bad faith and its entitlement to punitive damages because the chancellor appeared to say exactly that when he allowed Bar-Til toi amend its complaint and add a claim for punitive damages.  The Court of Appeals affirms the case holding that there has to be some underlying basis, such as malice or fraud, before a chancellor must hold a second hearing on the issue of punitive damages.   

Banks v. Brinker, Mississippi, Inc. –  premises liability; hole in parking lot – Banks was injured when she stepped in a hole in the parking lot of A Chili’s and she sued. She was not eating at Chili’s however.  She was eating at the IHOP next door  and mistook the Chili’s parking lot for the IHOP parking lot.  Chili’s filed for summary judgment on the grounds that Banks was only owed the duty to a licensee. “Banks argues that Brinker received an economic advantage by her presence on its property and that Brinker invited members of the public to use its parking lot and patronize neighboring businesses.”    The court granted summary judgment for Chili’s.  On appeal, the Court of Appeals affirms.  “The record reflects that Chili’s derived no benefit from Banks’s use of its parking lot. Banks failed to present evidence to show the existence of a dispute of material fact to support her claims that she constituted an invitee or that Chili’s committed any negligence. See Hudson v. Courtesy Motors Inc., 794 So. 2d 999, 1004 (¶16) (Miss. 2001).  Our review of the record further reflects no evidence presented by Banks to show that the condition of the Chili’s parking lot was the result of conscious disregard of a serious danger, or of knowing or intentional conduct. Accordingly, we find no error in the trial court’s order granting summary judgment after finding that no genuine issue of material fact existed.” 

Thornton v. Big M Transportation Co. –  summary judgment procedure – Tyrone Thornton was travelling from Wisconsin to Alabama when around 3 in the morning he collided with a tractor-trailer rig parked on the highway between Batesville and Oxford. Apparently the rig, belonging to Big M, had been stolen a couple of hours previously. Tyrone and his wife, Annie, filed a negligence suit against Big M Transportation and John Doe.   The trial court  established November 1, 2010, as the deadline for filing all motions other than motions in limine. After the  deadline passed, the Thorntons filed a second complaint against the driver who had dropped the rig off that night before it was stolen.  The circuit court later consolidated the cases.  Following a status conference on July 27, 2011, the court entered an order that established July 29, 2011, as the new deadline for filing additional motions, including any motion by the Thorntons to amend their complaint. On August 4, 2011, several days after the deadline set by the circuit court judge, the Thorntons filed a motion to amend their complaint to add a second John Doe and Mississippi Farm Bureau Casualty Insurance Company  and to add causes of action for negligent security, general negligence, and negligence per se.  Motions for summary judgment filed by Virges and Farm Bureau were granted.    Big M Transportation then filed its motion for summary judgment on December 5, 2012, and its memorandum of authorities on January 28, 2013. The circuit court granted summary judgment in favor of Big M Transportation on May 17, 2013.  The Thorntons appealed arguing that Big M’s motion was filed out of time and that the memo was filed a month after the motion.    The Court of appeals holds that “As noted by the circuit court’s order, despite the motions deadline set by the circuit court, the Thorntons filed their amended complaint after the deadline passed. In addition, the Thorntons’ attorney specifically stated that additional discovery and motions for summary judgment would be filed after the Thorntons’ complaint was amended.”  As for the memo being filed a month later, technically this was not in compliance with the rules.  However, the memo was still filed three months before the hearing giving the Thorntons ample time to reply. As for the Thorntons argument that there were material issues of fact, even if the Thorntons could prove there was negligent security, they are still wanting insofar as proximate cause is concerned. 

Laws v. Louisville Ladder, Inc. –  discovery – In 2010, Laws filed suit against Louisville Ladder, the manufacturer of a six foot ladder that Laws was using when the bottom step split and Laws fell.  In August 2012, Laws agreed to produce his expert, Dr. Richard Forbes, for deposition.  Louisville faxed a sdt to Laws’ counsel requesting copies of all materials Forbes had reviewed, time records, his c.v., etc.  Forbes was also sent a sdt and the notice of deposition. The subpoena had the depo set for September 27, 2012.  Meanwhile, LAws’ attorney asked Louisville to depose its 30(b)(6) rep. and told Louisville’s counsel that Forbes would not appear on September 27th because Laws had not been able to depose the 30(b)(6) rep. yet.  Louisville Ladder objected noting that discovery closed on September 28 and dispositive motions had to be filed by October 30. Laws claimed that the parties agreed to extend the discovery deadline but it appears while both sides discussed the same, no agreement was reached.  At any rate, in  Oct., Louisville filed a motion to dismiss or other sanctions because Laws had not produced its expert on September 27.  The trial court denied the motion to dismiss but as a sanction struck Laws’ expert.  Laws filed an interlocutory appeal which the Miss.S.Ct. declined to hear.   Laws asked for additional time to get a new expert witness but that too was denied.  On February 7, 2013, the trial court granted summary judgment for Louisville Ladder on the grounds that Laws had no expert.  On appeal, the Ct. of Appeals reverses.

A review of the record reflects that Louisville Ladder served a subpoena duces tecum upon Laws, and not a subpoena ad testificandum requiring Dr. Forbes’s personal presence at a deposition or hearing.The comments to Mississippi Rule of Civil Procedure 45 explain that “[s]ubpoenas are of two types: a subpoena ad testificandum compels the attendance of a witness; a subpoena duces tecum compels the production of documents and things.” See also Miss. Code Ann. § 11-1-51 (Rev. 2002); 9 Wright & Miller, Federal Practice and Procedure, Civil § 2451 (1971). Rule 45(a)(1) provides that a subpoena “shall command each person to whom it is directed to attend and give testimony, or to produce and permit inspection” of evidence, and further provides that the “command to produce or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately.” As previously acknowledged, precedent reflects that the attendance of a nonparty expert witness must be obtained by proper subpoena. Winters, 815  So. 2d at 1177 (¶35). The trial court herein erred by imposing sanctions, since the record reflects that Laws complied, as required by Rule 45 and Mississippi Code Annotated section 11-1-51, with the subpoena duces tecum that Louisville Ladder actually served in this case. 

While Forbes was sent a sdt, he complied with the sdt.   There is no requirement that the recipient of a sdt deliver them personally.  So neither Laws not his expert failed to comply with discovery.  Since there was no discovery violation, there was no need for sanctions and the striking of Laws’ expert was error.   “Precedent reflects that there must be a clear showing of noncomnpliance or of lack of cooperation to support sanctions . . . .”

Terrell U. WIlliams v. Statepcr from guilty plea – Williams was charged with the statutory rape of his 15-year-old stepdaughter. In August 2010, he pleaded guilty, admitting having sex with her and impregnating her, and was sentenced to thirty years with twenty suspended and 10 to serve.  Two years later he filed a pcr petition in the circuit court. He claims the indictment was invalid because it did not specify the exact days he had sex with his stepdaughter, the exact type of sex and the number of time intercourse occurred. He made these same claims prior to entering his plea. The indictment, which alleged that he had sex with the stepdaughter between August 2009 and August 2010 was sufficient. Williams also argues that the court did not have jurisdiction over the case because the intercourse occurred in Georgia.  He had moved to Georgia   in September 2009.  He claims the step daughter got pregnant when she came to visit him on spring break and he attaches a hotel recept dated March 16, 2010.   The Court finds this argument underwhelming inasmuch as Williams admitted when he pleaded guilty that he had sex and impregnated his stepdaughter in Hinds County. Finally, he claims he should have been granted an evidentiary hearing.   This, too, lacks merit because Williams’ claims lack merit.    

 

 

2 thoughts on “Decisions – Miss.Ct.App. – August 26, 2014

  1. In the classic list of defenses, you know, the one that goes “my dog didn’t bite you; even if my dog did bite you, it’s because you provoked him; even if my dog did bite you, you really aren’t injured; my dog didn’t bite you because I don’t have a dog,” there is no “I had sex with her in Georgia” defense.

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